Professional Documents
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David H. Carpenter
Legislative Attorney
Todd Garvey
Legislative Attorney
Edward C. Liu
Legislative Attorney
a congressional committee to obtain the President’s tax returns under provisions of the Internal Revenue
Code (IRC); whether the President or the Treasury Secretary might have a legal basis for denying a
committee request for the returns; and, if a committee successfully acquires the returns, whether those
returns legally could be disclosed to the public.
constitutional arguments might be offered by the Treasury Secretary in the event he declined, either under
his own initiative or at the direction of the President, a request by a tax committee under the Section 6103
framework to provide tax return information of the President. First, he may contend that the request lacks
a legislative purpose and therefore is beyond Congress’ investigative authority. Second, he might declare
that providing the tax returns would impermissibly violate the privacy interests of the President.
Under such a scenario, either the committee chair or the committee’s house of Congress might seek
judicial enforcement of the chair’s request. The House recently obtained judicial resolution of
information-access disputes with the executive branch, but those cases were expressly authorized by the
House and involved congressional subpoenas rather than requests for information pursuant to a statutory
access provision. Individual Members and legislative officials like the Comptroller General, without a
subpoena and without explicit authorization by a house of Congress, have generally been unsuccessful
obtaining judicial enforcement of demands for information. A federal court may, therefore, be more likely
to hear a lawsuit to enforce Section 6103 filed with the support of either house of Congress, than it would
be to hear a claim filed unilaterally by a committee chair without such support.
Regardless of the merits of the case, if litigation ensues over the Treasury Secretary’s denial of a tax
committee’s request for the tax returns, some have suggested that resolution of the matter may take
months or possibly longer.
Legislative Purpose
Because the investigative power derives implicitly from the Constitution’s vesting of legislative power in
the Congress, congressional inquiries must be undertaken “in aid of the legislative function.” This
“legislative purpose” requirement is relatively generous, and authorizes inquiry into any topic upon which
legislation could be had, including attempts by Congress to inform itself for purposes of determining how
laws function, whether new laws are necessary, and whether Congress should repeal or alter old laws.
Congress may also exercise its “power of inquiry” for the purposes of conducting government oversight
to ensure compliance with, and proper administration of, existing law. Although the investigatory power
is both “penetrating and far reaching,” courts have made clear that Congress is not furthering a legislative
purpose when it seeks solely to “expose for the sake of exposure.” Nor does Congress possess “the
general power of making inquiry into the private affairs of the citizen” when such an inquiry could “result
in no valid legislation.”
In light of these principles, if a chair of a tax committee seeks the President’s tax returns solely for the
purpose of public dissemination without any nexus to a legislative or oversight function, a court could
view that request as pursuing “exposure for the sake of exposure” and not within Congress’ or the tax
committee’s power. Yet the validity of even this type of request would be subject to some ambiguity,
especially regarding returns filed after the President took office. The precise line between an
impermissible inquiry driven by the purpose of exposure and a permissible inquiry involving Congress’
authority to “inquire into and publicize corruption, maladministration or inefficiency in agencies of the
Government” is not clear, especially since the U.S. Supreme Court has characterized Congress’ role in
informing the public (known as the “informing function”) as “indispensable” and “not to be minimized.”
One significant factor in making this determination appears whether the information sought reflects or
relates to the “workings of [] government” or purely “private affairs.”
There are a number of reasons why a committee’s attempts to obtain a President’s tax returns could serve
a legislative purpose. For example, a purpose grounded in a tax committee’s need to gather information
necessary for Congress to alterations to the tax code that may relate to presidential tax obligations would
seem to be “in aid of the legislative function.” The same may be true of a request made as part of a
broader oversight effort to review the relationship between the President and the IRS or possible financial
conflicts of interest. Under this reasoning, a committee’s legislative purpose would appear to be strongest
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with regard to returns filed by a president while in office, or perhaps while a presidential candidate, as
opposed to those filed while a purely private citizen. The House Ways and Means Committee appears to
have begun laying the groundwork to support a valid legislative purpose for seeking the President’s tax
returns. In February, the Committee’s Oversight Subcommittee held a hearing examining the need for
legislation that would require the President and Vice President to publicly disclose their tax returns.
Privacy Rights
Whereas the previous section discussed the boundaries of Congress’ investigative power, this section
discusses grounds upon which legislative inquiries may be impeded by protections available to the subject
of the inquiry. Because that subject is the President, questions regarding the scope of executive privilege
may be raised. That privilege, at least regarding the President’s generalized interest in preserving the
confidentiality of his communications, has been interpreted by the Supreme Court as “limited to
communications” made “in performance” of the President’s “responsibilities of [] office” and “in the
process of shaping policies and making decisions.” Because tax returns, which are required to be filed for
everyone who has reportable income above a certain threshold, appear to lack a clear nexus to either
presidential responsibilities or of presidential decision-making functions, executive privilege would not
seem to provide a legally compelling reason for denying a committee access to the President’s tax
records.
However, even if executive privilege does not apply, the disclosure of tax returns to Congress might still
be resisted by invoking privacy rights held by the President as a taxpayer. In two cases decided during the
1970’s the Supreme Court referred to a constitutional “interest in avoiding disclosures of personal
matters,” which has come to be known as a “right to informational privacy.” Although the Supreme Court
has questioned the continuing vitality of this right, it remains good law in the lower courts. In applying
this right to informational privacy, courts have generally conducted a balancing test to determine whether
legitimate governmental interests outweigh the relevant privacy interests. For example, in one of the
Supreme Court cases recognizing a right to information privacy, Nixon v. Administrator of General
Services, the Court reviewed a challenge to a provision of the Presidential Recordings and Materials Act
that required federally employed archivists to process and screen presidential papers and tape recordings
of the former President. In upholding the act against a challenge based on President Nixon’s interest in
informational privacy, the Supreme Court described the law as a reasonable balance between the
government’s interest in preserving records relating to the former President’s performance in office and
President Nixon’s interest in the privacy of personal information unrelated to his government service. In
reaching this conclusion, the Court noted that the bulk of the information at issue pertained to the “official
conduct of his Presidency,” and concluded that any invasion of privacy was mitigated because non-
pertinent information would be returned to the former President without public disclosure.
Relying on Nixon, federal courts of appeals have generally upheld state laws requiring government
officials to release certain financial information. For example, in Plante v. Gonzalez, the Fifth Circuit
upheld a state law requiring state legislators to publicly disclose personal financial information, on the
grounds that the mandated disclosure advanced the government’s legitimate interest in deterring
corruption and conflicts of interest, and created public confidence in state government. The court viewed
these interests as sufficient to overcome the legislators’ interests in financial privacy, which were limited
by their voluntary decision to run for office. Similarly, in Barry v. City of New York, the Second Circuit
found that a city ordinance requiring city officials to submit financial disclosures to the city clerk, where
they could be subject to public inspection upon request, was supported by the same legitimate government
interests as in Plante, namely the deterrence of corruption and conflicts of interest, and the enhancement
of public confidence in governmental integrity.
With respect to the disclosure of the President’s tax return information to Congress, it is likely that
Members seeking the information would assert the same government interests that the plaintiffs asserted
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in Plante and Barry, including deterrence of corruption, detection of conflicts of interest, and
enhancement of public trust or faith in government. Those seeking access may also argue the President’s
voluntary choice to run for office diminished any privacy interest he might assert in his tax returns. In
response, the President may argue that the amount of personal information in a tax return that is not
related to his performance in office or another legitimate government interest should weigh against
disclosure. While not dispositive, such an argument might be stronger with respect to those tax returns
from before his candidacy or time in office. Additionally, the President might argue that the chance of
broader disclosure of such tax return information to the House or the Senate under Section 6103
exacerbates any invasion of privacy, because a larger group of persons would have access to the
information. However, if a court were to adopt the analysis from Plante and Barry, the President’s
privacy interests would not appear to be sufficient to overcome a legitimate governmental interest in his
tax return information.
The tax committees appear to have sparingly exercised their authority to release tax return information
publicly by submitting the information to the full House or Senate. The JCT submitted various aspects of
President Nixon’s tax returns to the Senate in 1974. (Although President Nixon consented to the release
of his tax returns and requested a JCT analysis of them, the resulting report apparently included additional
details that were not included in the returns released by President Nixon.) A more recent example
occurred in 2014, when the House Ways and Means Committee, as part of a Department of Justice
criminal referral letter submitted to the House, disclosed the tax return information of approximately 51
taxpayers as part of the Committee’s investigation into political-based targeting of entities seeking tax-
exempt status. At least one scholar has criticized the use of the authority in 2014 because he argues that it
did not further a legitimate legislative purpose. Nevertheless, it does not appear that any Member of
Congress faced civil or criminal charges for the exercise of the authority after either incident.